Evolution of the Section
The Environmental Defense Section (EDS) traces its roots to 1971. In that year, in response to an increasing awareness of the adverse effects of environmental degradation on the public health and welfare, the Pollution Control Section was added to the Land and Natural Resources Division with the special mission of handling all civil and criminal litigation under environmental regulatory statutes such as the Clean Air Act. In October 1979, the Division created the Hazardous Waste Section to begin enforcement with respect to hazardous wastes under the 1976 Resource Conservation and Recovery Act (RCRA) and other authorities.
In March 1980, the Hazardous Waste Section’s mandate was expanded to include cost-recovery litigation pursuant to the Uranium Mill Tailings Radiation Control Act. In that same year, the Division decided to separate enforcement and defense litigation responsibility, which led to the division of the Pollution Control Section into the Environmental Enforcement Section and the Pollution Control Section, respectively.
In 1981, the original Pollution Control Section was renamed the Environmental Defense Section. The Hazardous Waste Section’s affirmative and defensive components were merged into the Environmental Enforcement Section and the Environmental Defense Section, respectively.
Federal Regulatory Jurisdiction over Wetlands under the Clean Water Act (CWA)
The Environmental Defense Section has played an important role in the development of many key aspects of modern environmental law. One good example involves federal regulatory jurisdiction over wetlands under the CWA. EDS prosecutes civil violations of these provisions and defends Army Corps of Engineers permit decisions and other wetlands-related actions of EPA and the Corps.
In 1985, the Supreme Court endorsed a relatively expansive understanding of federal jurisdiction over wetlands in United States v. Riverside Bayview Homes, in a case arising out of a civil wetlands enforcement action in Michigan. In ruling in the government's favor, the Supreme Court held that "waters of the United States" regulated under the Clean Water Act was properly interpreted by the Corps to include adjacent wetlands.
Over the next quarter century, EDS has been at the forefront of litigation involving the crucial question of just how far these "waters of the United States" extend. So far, these questions have resulted in two additional Supreme Court decisions, Solid Waste Agency of Northern Cook County v. Corps (2001) (CWA jurisdiction does not extend to so-called "isolated" waters and wetlands), and Rapanos v. United States (2006) (considering extent of CWA jurisdiction over relatively smaller and more intermittent waters), as well as scores of lower court decisions. In all these cases, the factual and legal arguments developed by EDS attorneys have helped shape the development of the law in this important and controversial area.
Nature and Scope of EPA's Regulatory Authority under the Clean Air Act (CAA)
EDS has also played a key role in the development of the law involving the nature and scope of the Environmental Protection Agency’s (EPA) regulatory authority under the CAA. By statute, petitions for review of EPA final actions under the CAA begin in the courts of appeals, and EDS handles this appellate practice.
One of the most prominent recent cases of this sort was Massachusetts v. EPA (2007), which considered the extent of EPA's authority to regulated emissions of greenhouse gases to address global climate change. The D.C. Circuit initially upheld an EPA determination that the Agency did not possess such authority, but in 2007, the Supreme Court reversed this decision, and in so doing, ushered in a new era of brisk regulatory and legislative action to address greenhouse gases and climate change.
While climate issues today are one of the most prominent of the regulatory issues under the Clean Air Act, ever since the enactment of the modern CAA in the 1970s, EDS has defended scores of important cases addressing the regulation of a variety of emissions from all types of stationary and mobile sources. These cases also frequently raise significant administrative law issues, so EDS attorneys have been active participants in the development of modern jurisprudential principles in areas such as standing, Chevron deference, and the scope of judicial review of agency actions.
Evolution of the Federal Superfund Cleanup Law
EDS attorneys have also played an important role in the evolution of the federal Superfund cleanup law, CERCLA (the Comprehensive Environmental Response, Compensation, and Liability Act). In the early 1980s, shortly after CERCLA was enacted, EDS played a large role in defending the statute against a torrent of broad-based challenges to its constitutionality and fairness. In fact, Congress ratified many of the results obtained in these cases when it adopted the Superfund Amendments and Reauthorization Act (or "SARA") in 1986. These judicial decisions and legislative action -- very controversial at the time -- created the fundamental cleanup and cost recovery mechanisms that are so familiar to, and effectively used by, EPA and the regulated community today.
As the program has matured, it has also spawned new legal questions -- such as the contribution issues addressed by the Supreme Court in Cooper Industries v. Aviall Services (2004) and Atlantic Research Corp. v. United States (2007), and in liability issues such as those addressed by the Court in its recent decision in Burlington Northern v. United States (2009). The Environmental Defense Section frequently handles cases raising these sorts of issues in the lower courts when it defends federal agencies alleged to have contributed to hazardous waste sites. EDS also has played, and continues to play, a very important role in the development of natural resource damages (NRD) law under CERCLA, as it pertains to state NRD claims against federal agencies.
Other Defensive Environmental Litigation
Today, the Environmental Defense Section participates in a broad spectrum of environmental litigation, including:
- defending client agency programs and initiatives;
- enforcing the wetlands protection provisions of the Clean Water Act and the Rivers and Harbors Act;
- resolving federal agency liability equitably in cases under CERCLA; and
- representing the United States as a defendant or respondent in cases brought under various pollution control statutes, including the CAA, CWA, Safe Drinking Water Act, Toxic Substances Control Act, and RCRA.
Defending agency programs and initiatives represents the largest segment of the Section’s practice. These include regulatory actions by the EPA and U.S. Army Corps of Engineers (Corps). In these cases, EDS defends rulemakings that represent the culmination of years of agency effort and significant investment of agency resources. Other components of this practice include defending federal agencies’ implementation of their statutory and regulatory mandates through defense of challenges to permit decisions, administrative orders and civil penalty claims. This litigation occurs in the district courts and in original actions in the courts of appeals throughout the country.
Enforcing the wetlands laws under section 404 of the Clean Water Act and Sections 10 and 13 of the Rivers and Harbors Act constitutes approximately 10 percent of EDS’s docket. These cases play a critical role in protecting the Nation’s wetlands and navigable waterways from illegal and harmful development and in preserving important ecosystems. EDS also brings civil enforcement actions for the unauthorized placement of obstructions in navigable waters and the impairment of the reach, flow, or capacity of those waters under section 10 of the Rivers and Harbors Act of 1899.
Federal agency CERCLA liability cases constitute over a third of the Section’s practice. In this ever-expanding area of the docket, the Section works to fairly resolve federal agency liability, thereby protecting the federal fisc against excessive claims while ensuring that the government pays its “fair share” of environmental cleanup costs.
Lastly, EDS handles novel, high-profile cases brought by states or environmental groups, alleging that federal agencies have violated requirements of the environmental laws, which typically apply to the federal government in the same manner, and to the same extent, as they apply to private parties. In addition, EDS handles a number of bankruptcy proceedings and state law actions. These areas of the docket comprise about 10 percent of the Section’s workload.